Morning Report 3/30/05 Out of Order

March 30, 2005

Hired gun: Gordon England, the former General Dynamics exec who runs the military tribunals, says: “For the last 10 months, we have focused on being open, fair, and rigorous.”

IT TOOK A one-two punch to the jaw of the Defense Department by reporters probing the case of War of Terror detainee Murat Kurnaz, but now we know a little bit about what’s been going on during the Bush regime’s military tribunals at Guantánamo Bay.

And part of what we’ve learned is that there are just too many damned defense contractors not only picking our pockets but even running our absurdly banana-Republican system of “justice.”

No wonder Don Rumsfeld, Paul Wolfowitz, Alberto Gonzales, and crew have desperately sought to keep the tribunals a secret.

First, Carol D. Leonnig of the Washington Post reported Sunday that a tribunal’s decision to hold Kurnaz, a German national, indefinitely after seizing him in Pakistan in 2001 appears dubious. Leonnig had broken through the Pentagon’s walls of silence to peruse formerly secret evidence.

Defense Department officials claimed that they couldn’t comment on Leonnig’s article. Here’s a passage from it that may explain why they wouldn’t say anything:

The three military officers on the panel, whose identities are kept secret, said in papers filed in federal court that they reached their conclusion based largely on classified evidence that was too sensitive to release to the public.

In fact, that evidence, recently declassified and obtained by the Washington Post, shows that U.S. military intelligence and German law enforcement authorities had largely concluded there was no information that linked Kurnaz to Al Qaeda, any other terrorist organization or terrorist activities.

In recently declassified portions of a January ruling, a federal judge criticized the military panel for ignoring the exculpatory information that dominates Kurnaz’s file and for relying instead on a brief, unsupported memo filed shortly before Kurnaz’s hearing by an unidentified government official.

Kurnaz has been detained at Guantánamo Bay since at least January 2002.

“The U.S. government has known for almost two years that he’s innocent of these charges,” said Baher Azmy, Kurnaz’s attorney. “That begs a lot of questions about what the purpose of Guantánamo really is. He can’t be useful to them. He has no intelligence for them. Why in the world is he still there?”

The Kurnaz case appears to be the first in which classified material considered by a “combatant status review tribunal” has become public. While attorneys for Guantánamo Bay detainees have frequently complained that their clients are being held based on thin evidence, Kurnaz’s is the first known case in which a panel appeared to disregard the recommendations of U.S. intelligence agencies and information supplied by allies.

The story stirred up a ruckus, and Rumsfeld trotted out what the Pentagon describes as his “designated civilian official for the Detainee Administrative Review Processes at Guantánamo,” Secretary of the Navy Gordon England, this afternoon in D.C. to field questions.

England, you understand, was brought on in early 2001 from General Dynamics, where he was a big exec known as an expert on information systems and aviation.

“There’s a danger when you have too many folks from the corporate world advising you. It can lead to inbred decision-making that is pro-corporate and anti-taxpayer.”

Hey, why not have them run some courts as well?

On Tuesday, England had to spend some time trying to show how the government is now behaving itself, saying, “For the last 10 months, we have focused on being open, fair, and rigorous.”

Yeah, well, not by choice. Last summer’s Rasul decision by the Supreme Court affirmed the right of detainees to appeal the secretive tribunals’ decisions through the federal court system.

Lawyers all over America have been palavering about Rasul ever since—after all, it was a major instance of the courts’ putting the brakes on the runaway Bush regime.

At a December luncheon in the Chicago offices of the big firm Jenner & Block, the lead counsel for the detainee Rasulexplained:

“The Rasul decision marks the first time the Court has found it necessary to insert itself into the on-going administration of the war power, a position that became necessary because of the unlimited reach of the Executive’s position,” said Joseph Margulies, an attorney with the MacArthur Justice Center and the lead counsel for the petitioners in Rasul.

To implement Rasul, the federal court in the District of Columbia will hold hearings to determine whether the detentions are lawful. But, Mr. Margulies said, Rasul also raises questions about federal court jurisdiction at other facilities around the world.

“There should be no prison beyond the law,” he said in his remarks. “If the Executive [referring to the doofus POTUS and his handlers] refuses to extend the protections of the law to detention facilities other than Guantánamo, or if it uses Rasul as an incentive to imprison people elsewhere, the Court may again be forced to intervene.”

A phrase worth repeating: “There should be no prison beyond the law.” Thanks, Margulies.

(And click here for more briefs than you ever want to read on the Guantánamo Bay cases.)

Anyway, on Tuesday afternoon, when Gordon England finally took questions, first up was Bob Burns of the Associated Press. Lifted from the official Pentagon transcript, part of the colloquy between Burns and England:

Burns: Mr. Secretary?

England: Bob?

Burns: Bob Burns from AP. In the written procedures that laid out the way these review boards were to be conducted, it said that regarding the government evidence that’s presented during the procedure, that the evidence is to be considered, quote, “genuine and accurate,” unquote. Is that the same as saying that these are facts presented about these individuals?

England: Well, they’re the facts as certainly as we know them, as people report them, as they’re compiled. So—I mean, it’s as factual as we know they’re factual. I mean, people report. There’s data to support it. So again, it’s like facts presented, I think, in the legal context to a jury, same type of data that would be presented. So I would say yes.

Is that your final answer, Gordon? Yeah, it’s like “facts presented” to a jury—assuming that we had a secretive process like, say, the old Soviet style that our neocons claim to hate so much. Here’s more of the exchange:

Burns: Does it include hearsay information?

England: Pardon?

Burns: Does it include hearsay information?

England: I would say it includes information that we consider reliable, and the board looks at the totality of the information. So we look at the preponderance of the evidence, and if there isn’t a preponderant amount of evidence to support the conclusion that a person is an enemy combatant, then we would conclude they’re not an enemy combatant. And that’s why there’s 38 that are not enemy combatants—designated as such.

Hearsay? Say what? Huh? Here’s where Burns gets to the heart of the matter reported by Leonnig:

Burns: Okay. How do you reconcile that description of the process with what we now know about the Murat Kurnaz case, where there was one unsupported memo from some unspecified military officer that said this guy may be associated with someone who’s a suicide bomber, but SOUTHCOM’s intelligence and Germany’s intelligence both said they had no evidence of it at all, and yet he was designated an enemy combatant by this process?

England: I read the [Washington Post] article. The article is partially correct, but the article does—the reporter did not have access to all the information. All the information has not been declassified and, in fact, a lot of the information that was inadvertently declassified, all of it wasn’t. So again, the tribunal bases their decision on the preponderance of the evidence, classified, unclassified, from all sources, and they make the very best decision they can—

Yeah, we trust you, Gordon. (Oops, he was still talking.)

England: Keep in mind, I mean, this is a tribunal. We have three military officers sworn to do the very best job they can for the United States of America. So you look at this data. I mean, my analogy is, the same way a judge or a jury looks at data. They make the best evaluation based on the data that they have available. And they make those decisions. I mean, just like in a legal sense, just like sometimes judges are overruled or juries are overruled, I mean, the systems aren’t perfect. These are human beings looking at data, but they are as right as we can make them based on the data. And we have very, very high quality people that do this—

Yes, “the same way a judge or a jury looks at data.” No, Gordon, it’s not the same. Your tribunals are Cardassian—you know, the reptilian military oligarchy that’s at war with the Federation and whose justice system demands that defendants prove their innocence. (Oops, England was still talking. I’m always interrupting people.)

England: So, it is fair, it’s equitable. And as I said before, we actually bend over to the benefit of the detainee—I think we go as far as we possibly can for the detainee to provide any data they also wish to provide. So it’s as fair and balanced as we can possibly make it.

As “fair and balanced” as the Bush regime “can possibly make it”? Now that I believe.